Dunbar v. Jackson Hole Mountain Resort Corp.

F I L E D
United States Court of Appeals
Tenth Circuit

DEC 14 2004
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

CAMIE R. DUNBAR and DOUGLAS
DUNBAR,

Plaintiffs - Appellants,
v. No. 03-8057

JACKSON HOLE MOUNTAIN
RESORT CORPORATION, a
Wyoming Corporation,

Defendant - Appellee.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 02-CV-123D)

Robert E. Schroth Sr. (Robert E. Schroth Jr. and W. Keith Goody, with him on the
briefs), Jackson, Wyoming, for Plaintiff-Appellant.

Mikel L. Moore (James K. Lubing, Jackson, Wyoming, with him on the brief),
Christensen, Moore, Cockrell, Cummings & Axelberg, P.C., Kalispell, Montana,
for Defendant-Appellee.

Before SEYMOUR, HENRY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.
 While skiing at the Jackson Hole Mountain Ski Resort, Camie Dunbar fell

approximately twelve feet into a snowboard half-pipe, suffering severe injuries

for which she alleges negligence on the part of Jackson Hole. At the time of her

accident, Dunbar was attempting to exit a specially designated ski and snowboard

terrain park. Finding that Jackson Hole did not owe Dunbar a duty of care for

risks inherent to her chosen recreational activity under the Wyoming Recreational

Safety Act, the district court granted summary judgment for the resort. Dunbar

now appeals, arguing that the risks inherent to alpine skiing do not include the

risk of falling into the side of a snowboard half-pipe when following a Jackson

Hole employee’s instructions on how to exit the terrain park. We exercise

jurisdiction under 28 U.S.C. § 1291 and REVERSE.

I

In March 2001, Camie Dunbar suffered the stated injuries when she skied

off a snow ledge in a specially designed “terrain park” at the Jackson Hole

Mountain Resort in Jackson Hole, Wyoming. A 33-year-old self-described

intermediate skier from South Florida, Dunbar skied into the terrain park area

with other members of her group who were part of a promotional ski trip

sponsored by her employer Clear Channel Communications.

Containing various man made features such as a table top jump and a

snowboard half-pipe, the Jackson Hole terrain park is designed for advanced

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skiers and snowboarders who choose to recreate in a very challenging risk-filled

environment. The terrain park is separated by a fence and a boundary rope from

an intermediate ski run. To enter the terrain park, skiers must pass through a gate

marked with a warning sign, alerting them that they are entering an advanced ski

area where “serious injuries, death, and equipment damage can occur.” At the

time of the accident, the terrain park had been relocated to its position in an

intermediate ski run, and did not appear on the Resort’s trail maps.

On the last day of her trip, Dunbar, along with Dave Dresher and Mike

Jennings, went up the mountain intending to “investigate” the terrain park. In

proceeding down an intermediate ski run, they skied through an initial gate

providing a warning sign that they were entering a double black diamond “terrain

feature trail.” After stopping adjacent to a red tram car which served as the office

for the “pipe and park” crew who were responsible for maintenance of the terrain

park, Dunbar observed other skiers and snowboarders maneuver various features

in the terrain park.

Based on their observations, Dunbar and her companions decided that they

did not want to try any of the features. In her deposition, Dunbar attested to

thinking “this is my last day [and] I want to go home in one piece.” She stated

that she did not know that there was a snowboard half-pipe in the terrain park,

and believed instead that the area included only the jumps she observed from the

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red gondola. There is no suggestion by either party that Dunbar intended to jump

any of the terrain jumps or intended to try her hand at stunts as a skier in a

snowboard half-pipe. Having decided that she did not want to ski any of the

double-black diamond features, she asked a Jackson Hole employee how to exit

that area “if you don’t want to take this terrain park.” She was told either to take

off her skis and hike back to the gate through which she had entered or to proceed

in the direction of a “catwalk” to which the employee pointed. Unbeknownst to

Dunbar, the “catwalk” led to a side entrance to the snowboard half-pipe.

Ms. Dunbar along with her companions skied along the “catwalk.”

Although it is a matter of some dispute between the parties, in order to proceed

down the catwalk, skiers had to pass warning signs indicating that they were

approaching a snowboard half-pipe area. Both Dunbar and her companions claim

not to have noticed the signs. Dunbar and Jennings went along the catwalk, up an

incline, across a flat deck, and fell approximately twelve feet into the half-pipe.

Jennings managed to maneuver his snowboard in such a way as to avoid injury.

Dunbar was not so fortunate. As a consequence of her fall into the half-pipe, she

suffered severe injuries to her pelvis and thigh requiring surgery and intensive

physical therapy. Dunbar testified that she will neither be able to return to her

pre-injury range of motion, nor will she be capable of having a natural childbirth

as a result of the injury to her hip.

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 Asserting that Jackson Hole’s negligence caused her injuries, Dunbar filed

suit in district court. Jackson Hole filed a motion for summary judgment and a

motion to strike portions of Dunbar’s affidavits as attempts to create sham factual

issues in order to survive summary judgment. The district court granted both

motions for Jackson Hole on the basis that portions of Dunbar’s affidavit were

inconsistent with her deposition testimony. Dunbar now appeals.

II

We review a grant of summary judgment de novo, applying the same legal

standards as the district court pursuant to Fed. R. Civ. P. 56(c). Chickasaw

Nation v. United States, 208 F.3d 871, 875 (10th Cir. 2000). Summary judgment

is appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must look carefully to

determine if existing factual disputes are material, because “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A court may not grant summary judgment when

“a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id. When the moving party has

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informed the district court of the basis for its motion, however, a nonmoving

party may not stand merely on its pleadings, but must set forth “specific facts

showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986) (citing Fed.R.Civ.P. 56(e)). In our application of this standard,

we view the evidence and draw reasonable inferences therefrom in the light most

favorable to the nonmoving party. Simms v. Oklahoma ex rel. Department of

Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

Furthermore, as a federal court sitting in diversity, we must ascertain the

applicable Wyoming law as announced by the Wyoming Supreme Court so that

the substantive law applied in federal court does not differ from what would apply

in state court. Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir. 1994).

A

To protect providers of recreational sports and activities from liability for

alpine skiing, equine activities, and other outdoor pursuits in the state, the

Wyoming legislature limited their duty of care by enacting the Wyoming

Recreation Safety Act. Wyo. Stat. Ann. § 1-1-121 et. seq.; see Sapone v. Grand

Targhee, Inc., 308 F.3d 1096, 1101 (10th Cir. 2002). As a matter of common law,

in order to prevail in a negligence action, a plaintiff would first have to

demonstrate that the defendant owed her a duty to act with reasonable care. See,

e.g., Erpelding v. Lisek, 71 P.3d 754, 757 (Wyo. 2003). The Safety Act is

6
designed to limit the duty a provider of recreational sports and activities owes to

participants.

Under the Safety Act, a provider of a recreational opportunity has no duty

to protect participants from “inherent risks” of the particular sport or recreational

opportunity. Wyo. Stat. Ann. § 1-1-123. In relevant part, the act provides:

(a) Any person who takes part in any sport or recreational opportunity
assumes the inherent risks in that sport or recreational opportunity, whether
those risks are known or unknown, and is legally responsible for any and all
damage, injury or death to himself or other persons or property that results
from the inherent risks in that sport or recreational opportunity.

(b) A provider of any sport or recreational opportunity is not required to
eliminate, alter or control the inherent risks within the particular sport or
recreational opportunity.

§ 1-1-123. Wyoming defines inherent risks as “those dangers or conditions which

are characteristic of, intrinsic to, or an integral part of any sport or recreational

opportunity.” Wyo. Stat. Ann. § 1-1-122(a)(i). Wyoming further defines “Sport

or recreational opportunity” as meaning “commonly understood sporting

activities,” which include “alpine skiing.” § 1-1-122(a)(iii). Thus, for example, a

provider of an alpine skiing opportunity will not be liable for a duty of care with

regard to dangers that are “characteristic of” or “intrinsic to” or “an integral part”

of the sport of alpine skiing. However, the act does provide for a cause of action

based on the negligence of the recreational opportunity provider when the injury

is not the result of an inherent risk of the sport or recreational opportunity:

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“Actions based upon negligence of the provider wherein the damage, injury or

death is not the result of an inherent risk of the sport or recreational opportunity

shall be preserved. . . .” § 1-1-123(c). Thus, whether a recreation provider owes

its patrons a duty of care depends entirely on whether the specific risks can be

characterized as inherent to the sport or activity.

What is inherent to a sport or activity, however, is far from self-evident. In

Sapone, we defined “inherent” under the Wyoming Safety Act as either “‘those

risks which are essential characteristics of a sport and those which participants

desire to confront,’ or they are undesirable risks which are simply a collateral part

of the recreation activity.” Sapone, 308 F.3d at 1103 (citation omitted). We have

further defined a risk that is not inherent as “a risk that was atypical,

uncharacteristic, [and] not intrinsic to the recreational activity. . . .” Id. at 1104.

Although equine activities are among those the Wyoming legislature clearly

meant to protect, and although horseback riding indubitably involves inherent

risks, we have concluded, following the Wyoming Supreme Court, that not all

risks of horseback riding are inherent risks. Cooperman v. David, 214 F.3d 1162,

1167 (10th Cir. 2000); Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo. 1995).

Some risks may occur from the choices a recreation provider makes on behalf of

the participant and from the conditions in which the recreational opportunity is

provided. Thus, atypical or uncharacteristic risks can arise even in those specific

8
sports the Wyoming legislature clearly intended to exempt from liability for

inherent risks. Following the Wyoming Supreme Court in Halpern, we have held

that “where genuine issues of material fact exist, the determination of whether

something is or is not an inherent risk is a factual question that must be sent to

the jury for determination.” Sapone, 308 F.3d at 1102.

As a preliminary matter, what sport or activity characterizes Camie

Dunbar’s behavior is a matter of considerable dispute. Most generally, she was

engaged in alpine skiing – a sport clearly covered by the Safety Act. If we were

to analyze the risk at this level of generality, then it would certainly appear that

falling twelve feet into a trench in the middle of an intermediate ski-run would

decidedly not constitute an inherent risk of alpine skiing. Such a level of

generality, however, is not appropriate. To determine what risk is inherent to

Dunbar’s activity, we must go beyond a broad characterization and inquire into

the specific circumstances of both her actions and those of the recreation

provider.

When the Cooperman court examined the risks of horseback riding in the

context of the specific facts of that case, for example, it employed a different

analytical framework than if it had merely asked the abstract question whether

falling off a horse is an inherent risk of horseback riding. Cooperman, 214 F.3d

at 1167. Because a determination of what risks are inherent to a sport or activity

9
may change by descriptive differences, we have stated that “[w]hen attempting to

determine whether a risk is inherent to a sport, we can not look at the risk in a

vacuum, apart from the factual setting to which the [participant] was exposed.”

Cooperman, 214 F.3d at 1167. Instead, we must analyze the risk “at the greatest

level of specificity permitted by the factual record.” Id. As an example of this

principle, we have explained:

[I]f the only fact presented to the court is that the horse bucked
while the rider was properly sitting on the horse, we would frame
the duty question as whether a bucking horse is an inherent risk
of horseback riding. However, if the facts established that the
owner of the horse lit firecrackers next to the horse and the horse
bucked, we would ask whether a horse bucking when firecrackers
are lit next to the horse is an inherent risk of horseback riding.

Id.

For instance, in Cooperman, we determined that the risk of a slipping

saddle, in light of the lack of scientific precision in hand cinching, is inherent to

horseback riding. Id. at 1168. However, in Sapone, we concluded that a child

sustaining injuries when falling from the saddle during a trail-riding lesson was

not an inherent risk when there was evidence that the horse was too large, that the

instructions were inadequate, that no headgear was provided, and that the route

was too dangerous. Sapone, 308 F.3d at 1104. Similarly, in Madsen v. Wyoming

River Trips, Inc., 31 F. Supp. 2d 1321, 1329 (D. Wyo. 1999), the district court

determined that the risks inherent to white-water rafting did not include risks of

10
injury resulting from the recreation provider’s overcrowding the boat. See also

Carden v. Kelly, 175 F.Supp. 2d. 1318, 1329 (2001) (finding a genuine issue of

material fact whether, given the actions and inactions of the recreation provider, a

horse’s stumbling and falling was an inherent risk of horseback riding).

In the present case, the district court’s order hinged on a determination of

where Ms. Dunbar was located when she made her choice to proceed down the

catwalk. Thus, not simply a question of alpine skiing, but of alpine skiing in a

designated terrain park became the significant “factual setting” the district court

used to examine the inherent risks to which Dunbar was exposed.

In its order granting Jackson Hole’s motion for summary judgment, the

district court stressed, and Jackson Hole urges on appeal, the need to focus on the

choices that Dunbar made when entering the terrain park. Reasoning that an

inherent risk analysis could not properly be conducted without considering

Dunbar’s choices, the district court focused on the facts of Dunbar’s conduct as

the recreational participant. Central to the district court’s determination of

inherent risk was the simple fact of Dunbar’s choice to enter the terrain park. The

court found that “a terrain feature such as a half-pipe located within a fenced

terrain park is an inherent risk to a skier that voluntarily and knowingly enters

that park.” Dunbar v. Jackson Hole, No. 02-CV-123-D, slip op. at 14-15 (D.

Wyo. June 16, 2003). Furthermore, the court concludes that having entered the

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terrain park, Dunbar “decided to enter the [metaphorical] ‘rodeo’ and thus

assumed the risk associated with that activity.” Id. at 15. We disagree.

First, we note that the plain language of the Safety Act focuses on “[a]ny

person who takes part in any sport or recreational opportunity,” Wyo. Stat. Ann.

§ 1-1-123, and does not mention the location of the sport or activity. We fail to

see how simply being present in the terrain park redefines the sport or activity in

which Dunbar is engaged, especially absent further choices to take part in any of

the terrain park features. No doubt location may have a bearing on how to

characterize a participant’s activity, but it is not automatically determinative as

the district court suggests. 1 Indeed, from the record, it is not clear whether the

double black diamond designation applied to the area of the intermediate ski run

from the putative entrance to the terrain park to the red tram car and from the

tram car to the catwalk. There seems to be no dispute that in the areas Dunbar

traversed a skier would not confront any unusual risks or features that differed

from those elsewhere on the intermediate ski run (at least until the point where

1
As to the issue of whether or not Dunbar had actually entered the park, we
note that the district court is itself not descriptively clear, stating at one point that
“she had misgivings about entering and asked a JHMR employee how to get out
of the terrain park.” Dunbar, slip op. at 13. Of course, if she had not “entered”
she could not ask how to “get out.” We conclude from this only that mere
presence in the terrain park may be too fine a reed to hang a determination that
Dunbar was engaged in a categorically different recreational activity which
contained greater inherent risks than does ordinary alpine skiing.

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Dunbar fell into the half-pipe). Thus it would seem to be an open question

whether the warning signs and double black designation properly applied to the

area that Dunbar actually traversed or if they were limited to the physical space

containing the dangerous terrain features. If the double black diamond

designation applies only to the specific terrain features and if the warnings apply

only to those skiers and snowboarders who attempt to maneuver over and among

the trail features down the fall line of the mountain, then it may be difficult to

conclude that Dunbar assumed a double black diamond risk simply by skiing

across the fall line on an intermediate slope to the tram car and then proceeding,

as directed, by way of the catwalk. Proper resolution of these factual questions

concerning the impact of Dunbar’s specific location on Jackson Hole’s duty,

however, are for a jury, not for the court, to decide.

Second, we conclude that there is a difference between the consequences of

conduct chosen by Dunbar, and risks that are inherent to that choice. It does not

necessarily follow, as the district court finds, that having entered the terrain park,

Dunbar also chose to confront all the features and conditions present within it.

Although the district court emphasized the choices and conduct of the plaintiff in

determining what risks she assumed, the court makes no distinction between the

risks that are inherent to her actual choices – to ski into the terrain park area, but

not to “take” any of the features – and risks that are inherent to choices one would

13
make when actually intending to ski over the specific features.

Indeed, a reasonable person who entered the general area of the terrain park

would stop first to view the features and decide whether or not to attempt to

maneuver over or through any of them. In fact, Jackson Hole’s warning signs, the

presence of which figure prominently in this dispute, direct skiers and

snowboarders to “please observe terrain features, their risks, and their degree of

difficulty before using.” That is precisely what Ms. Dunbar did. She chose to

enter the area of the terrain park – if not the terrain park itself – but specifically

chose not to “use” or “take” any of the terrain park features after doing exactly

what Jackson Hole’s signs advised her to do: “observe . . . before using.”

Presumably, Jackson Hole does not wish to claim that it operates like the Hotel

California – where you can check in any time you like but you can never leave.

Accordingly, it was error for the district court to conclude that having followed

Jackson Hole’s instructions, having assessed the risks and decided not to use the

terrain features, that there is no material issue of fact concerning whether a skier

could leave without accruing those very risks. Having “entered” the terrain park,

Dunbar did not “use” the terrain park as a terrain park—viz., she did not attempt

to jump the table top jump nor did she attempt to do stunts in the snowboard half-

pipe. She attempted to exit the terrain park without “taking” any of the features,

and followed instructions from a Jackson Hole employee on how to exit the park.

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Given the specific factual setting of this case, what risks are associated with

Dunbar’s actual choices and what duty Jackson Hole owed her are properly

questions for the jury.

Accordingly, we conclude that the district court erred when it found that

the risk of falling twelve feet into a snowboard half-pipe was an inherent risk of

Dunbar’s alpine skiing when she had stopped and observed double diamond

terrain features and had chosen not to “take” those features. When, as is here,

genuine issues of material fact exist, it is properly a question for the jury to

determine whether dangers that are “characteristic of” or “intrinsic to” or “an

integral part” of the sport of alpine skiing evaluated under the specific factual

circumstances of this case include those encountered by Dunbar in skiing from the

main intermediate run to the tram car and from the tram car along the catwalk.

Sapone, 308 F.3d at 1102 (“whether something is or is not an inherent risk is a

factual question that must be sent to the jury for determination”); see also,

Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir. 1992) (holding under a

Vermont statute similar to Wyoming’s, that determination of inherent danger “is a

question of fact properly submitted to the jury”).

B

As we have observed, inquiry into what dangers constitute an inherent risk

under the Safety Act is inextricably intertwined with an inquiry into what duty the

15
recreation provider owes to the participant, and whether that question is properly

one for the judge or jury. If Dunbar’s accident was not the product of an inherent

risk of her recreational activity, then a question remains for the fact finder

concerning what duty was owed her and whether Jackson Hole fulfilled that duty.

We conclude that the district court improperly analyzed the issue of Jackson

Hole’s duty.

When the issue of duty involves questions of fact, as is the case with

“inherent risks,” the Wyoming Supreme Court has held that the question of a

defendant’s duty should be resolved by a jury. Halpern, 890 P.2d at 565.

However, in certain instances where no material questions of fact exist – e.g., if

the risk is clearly one inherent to the sport – the district court may decide as a

matter of law that a provider does not owe a duty to the participant under the

Safety Act. Halpern, 890 P.2d at 566 (noting that “[i]n appropriate cases where

no genuine issues of material fact exist, the district court may decide as a matter

of law that the provider does not owe a duty to the participant.”). Such was not

the case here.

How the district court framed the statement of Jackson Hole’s duty is

crucial to a proper disposition of this case. It has become something of a standard

analysis in this line of cases for a district court to frame the question of duty, in

addition to the question of inherent risk, in the form of a fact-specific inquiry.

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Indeed, as the district court noted in another Safety Act case, “[t]he Court cannot

stress how important it is to frame the duty question correctly. If the duty

question is framed incorrectly, the legislature’s intent to allow a cause of action

for negligence will be lost.” Madsen, 31 F. Supp. 2d. at 1329.

In the present case, the district court framed the question of duty as

follows:

[W]hether Camie Dunbar’s injuries occurred as a result of the
inherent risk of alpine skiing when this thirty-three year-old
experienced skier knowingly entered a specially designated
terrain park, skied past five warning signs, made the choice not
to exit by way of the gate she entered understanding that she
would encounter expert and double expert terrain features, skied
up the visible half-pipe wall, and across a fourteen-foot platform.

Dunbar, slip op. at 14. We have already concluded that Dunbar’s mere presence

in the entrance area of the terrain park does not give rise as a matter of law to a

heightened risk above what is normal to alpine skiing. We now conclude that the

question of Jackson Hole’s duty was improperly framed because it employs facts

in dispute, and does not view the facts in the light most favorable to the non-

moving party.

Specifically, the district court’s finding that Dunbar chose not to exit the

terrain park area via the gate by which she entered understanding that she would

encounter expert and double expert terrain features is itself a fact open to dispute.

Whether or not her choice was made with that understanding is a disputed fact,

17
and read in the light most favorable to the plaintiff, the district court improperly

incorporated a disputed fact in a light favoring the defendant. Second, the district

court frames the duty question by stating that Dunbar “skied up the visible half-

pipe wall.” Id. Whether or not what she skied up was in fact visibly a half-pipe

wall is itself a disputed fact, and inclusion of this fact in a light most favorable to

the defendant was improper. Finally, the district court states that Dunbar “skied

past five warning signs,” which although perhaps true (though contested), shades

the “duty question” in a way that ignores the factual issues of the content and

import of each of those signs in the context of the Jackson Hole employee’s

instructions on how to exit the park. Given the fact that we have previously held

that the question of a provider’s duty is partially determined by a fact-specific

framing of inherent risk, we conclude that the district court erred in making

factual findings that are properly findings for a jury. See Sapone, 308 F.3d at

1102.

Finally, we note that whatever risks Dunbar assumed herself, it seems clear

that she did not also assume the risk of needing to interpret the delphic statements

of Jackson Hole’s employees. Both Jackson Hole and the district court focus on

the issue of choices that Dunbar made, ignoring the choice that Jackson Hole

made for her in directing her to exit the terrain park area by either hiking out the

main entrance or skiing along the catwalk. We have made clear that a duty of

18
care may arise from choices made for the participant by the recreation provider.

Sapone, 308 F.3d at 1104; see also, Madsen, 31 F. Supp. 2d at 1328-29; Carden,

175 F.Supp. 2d. at 1328-29. Absent from the district court’s order is any

recognition that once Dunbar asked a Jackson Hole employee how to exit the

terrain park area without “taking” any of the features, Jackson Hole owed a duty

to provide her with appropriate instructions, which might have included a specific

warning to beware of the drop into the half-pipe at the end of the catwalk.

Whether or not they fulfilled that duty is a question for the jury. Accordingly, the

district court erred when it framed the question of Jackson Hole’s duty by

incorporating facts in dispute and when it failed to submit the question of duty to

the fact finder pursuant to Wyoming Supreme Court precedent.

On appeal, Dunbar also raises as error the district court’s granting Jackson

Hole’s motion to strike portions of her affidavit as creating sham factual issues to

survive summary judgment. Those supposed sham facts dealt with Dunbar’s

understanding of whether she had entered the actual terrain park (the area

including the jumps) when located at the tram car. Because we conclude that

summary judgment was inappropriate, the issue of Dunbar’s affidavit is now

moot.

III

For the reasons set forth above, we REVERSE the district court and

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REMAND for further proceedings consistent with this opinion.

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